Fees Denied for ‘Self-Serving’ FOIA Victory

WASHINGTON (CN) – A federal judge ruled against an attorney seeking legal fees on behalf of his one-man nonprofit after it won access to CIA records. National Security Counselors, a nonprofit that disseminates information on government activity related to national security, sued the CIA last year when it failed to respond to the organization’s two requests under the Freedom of Information Act for documents on the declassification program. U.S. District Judge Rosemary Collyer noted Wednesday, however, that National Security Counselors is just one man: Kelly McClanahan, who acts as the group’s founder, CEO and attorney. McClanahan filed the FOIA requests and sued the CIA for not responding. In ruling against the CIA last year, Collyer found that the agency improperly withheld documents on “special procedure for the [Mandatory Declassification] review of information pertaining to intelligence activities … or intelligence sources or methods’ developed by the Director of Central Intelligence.” Collyer was less kee, however, when it came to McClanahan’s request for attorney’s fees on behalf of National Security Counselors. “Defendants oppose the petition, arguing that National Security Counselors hardly prevailed, seeks exaggerated fees, and is not a separate entity from its lawyer, Kelly B. McClanahan,” the ruling states. “The court agrees that the record does not support Mr. McClanahan’s asserted attorney-client relationship with National Security Counselors. Of course, a lawyer can submit FOIA requests and litigate their denial, but he cannot claim fees without a true, independent client. There is no such client here.” A Georgetown University grad, McClanahan’s background is in national-security law and information- and data-privacy law, according to the ruling. He worked in attorney Mark Zaid’s firm where he specialized in whistle-blower and security-clearance cases before joining Kohn, Kohn & Colapinto. In 2009, he chartered National Security Counselors, an organization with an unclear organizational membership. Collyer found little evidence to suggest that anyone other than McClanahan works for the organization, but McClanahan insists that his organization has a three-member Board of Directors and a rotating class of legal interns. “We are currently weighing our options for the next step in this case, but you can be assured that a next step will be taken,” McClanahan said in an interview. Collyer’s ruling emphasizes that “McClanahan has submitted fifty-nine FOIA requests to CIA in Fiscal Year 2012 alone.” “There are also five cases pending, including the instant case, that involve forty-seven FOIA requests from National Security Counselors to CIA,” she wrote. “If the court were to award attorney’s fees here, Mr. McClanahan’s practice could become the ‘cottage industry’ that raised concerns for the Sixth Circuit.” The judge dismissed McClanahan’s petition, concluding that “without a true client, the government is under no obligation to subsidize self-serving activity.”